Herbert N. JACKSON v. Tony PARKER, Warden.
Court of Criminal Appeals of Tennessee, at Jackson.
April 27, 2011.
186
Assigned on Briefs April 12, 2011.
OPINION
JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and ROBERT W. WEDEMEYER, J., joined.
The petitioner, Herbert N. Jackson, appeals the denial of his petition for writ of habeas corpus, which challenged his 2006 Madison County Circuit Court conviction of theft of property valued at $1,000 or more but less than $10,000. In this appeal, he claims that his sentence is illegal because the trial court failed to award him credit for the time he spent on community corrections and that his sentence has expired. Because the habeas corpus court erroneously concluded that the petitioner failed to state a cognizable claim for habeas corpus relief and because the petitioner has established entitlement to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded to the habeas corpus court for the entry of an order directing the trial court to amend the petitioner‘s judgment to reflect credit for time actually served on community corrections. Further, because the petitioner has established that, accounting for a correct application of community corrections credit, his sentence has been served and has expired, the petitioner is entitled to immediate release.
On September 11, 2006, the petitioner entered a plea of guilty to theft of property valued at $1,000 or more but less than $10,000, and the Madison County Circuit Court imposed a sentence of four years to be served as 11 months and 29 days’ incarceration followed by community corrections.1 The trial court awarded the
On January 25, 2010, the trial court, utilizing a form “order” that permitted the court to simply check certain boxes, revoked the defendant‘s community corrections sentence and checked those boxes requiring him to “serve [the] original sentence imposed” subject to “credit for time served on above referenced case[].”3 The trial court apparently did not enter a new conviction judgment that included a calculation of jail and community corrections credits following the revocation. On June 8, 2010, the petitioner filed a petition for writ of habeas corpus alleging that the sentence imposed by the trial court following the revocation of his community corrections was illegal because the trial court failed to award him statutorily-mandated credit for the time he actually served on community corrections. In addition, the petitioner claimed that, taking into account all applicable credits, his four-year sentence had expired. The habeas corpus court summarily dismissed the petition, concluding that the petitioner had failed to state a cognizable claim for habeas corpus relief and had failed to establish that his sentence had expired. The court also concluded that the petitioner had failed to attach to his petition sufficient documentation to support his claims. The petitioner then filed a motion for relief from judgment pursuant to
Initially, we note that it appears that the petitioner‘s notice of appeal was not timely filed. Because we have determined that the petitioner has presented meritorious claims for relief, we conclude that the interest of justice requires excusing the untimely filing of the notice of appeal in this case. See
“The determination of whether habeas corpus relief should be granted is a question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn.2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn.2000)). Our review of the habeas corpus court‘s decision is, therefore, “de novo with no
The writ of habeas corpus is constitutionally guaranteed, see
In addition to the various procedural requirements for the prosecution of a petition for writ of habeas corpus contained in the Code, see generally
The petitioner first claims that his post-revocation sentence is void because the trial court failed to grant him credit for the time he actually served on community corrections. As indicated, the habeas corpus court concluded that the petitioner‘s claim was not a cognizable ground for habeas corpus relief and directed the petitioner to the Uniform Administrative Procedures Act as an avenue for relief. The State does the same on appeal.
Tennessee Code Annotated section 40-36-106(e) provides that an offender serving a community corrections sentence is entitled to credit “for actual time served in the community-based alternative program.”
The State concedes that the award of credit for time served on community corrections is mandatory, but it nevertheless asserts that the trial court‘s failure to award the credit is not a cognizable claim for habeas corpus relief. Instead, the State argues, the defendant must bring an action pursuant to the Uniform Administrative Procedures Act. In Tucker v. Morrow, 335 S.W.3d 116 (Tenn.Crim.App.2009), however, this court clarified that “[a]lthough claims ‘relative to the calculation of sentencing credits and parole dates’ must be reviewed pursuant to the Uniform Administrative Procedures Act,” that general rule was not applicable to the award of pretrial and post-judgment jail credits. Id., at 112. We observed that the award of jail credits lay solely within the purview of the trial court and that “any resort to administrative avenues of relief to address the trial court‘s failure to award pretrial jail credits would be futile.” Id. Community corrections credits, like pretrial and post-judgment credits, can only be awarded by the trial court. Similarly, the Department of Correction “is powerless” to alter or amend the award of community corrections credit, and proceeding via the Uniform Administrative Procedures Act would not avail the petitioner of relief from the trial court‘s failure to award him credit for the time he spent on community corrections, and it is not the proper method for seeking relief.
Having concluded that the Uniform Administrative Procedures Act would not provide the petitioner the relief he desires, we must next determine whether the trial court‘s failure to award community corrections credit is a cognizable ground for habeas corpus relief. Again, the analogy to pretrial and post-judgment jail credits is helpful. As is the case with pretrial and post-judgment jail credits, the Code creates an entitlement to community corrections credit by making its award mandatory upon a revocation of a community corrections sentence. Indeed, our supreme court has observed that “a defendant whose community corrections sentence is revoked is entitled to credit toward the sentence for time spent in community corrections prior to the revocation.” Carpenter, 136 S.W.3d at 612. Given the mandate of Code section 40-36-106, the failure to award credit for time actually spent on community corrections contravenes that statute and results in an illegal sentence, which is, as we observed in Tucker, “an historically cognizable
To sustain a challenge to the trial court‘s failure to award community corrections credit via a petition for writ of habeas corpus, the petitioner must establish, by documentation exhibited to his petition, that he was entitled to credit and that the trial court failed to award it. Cf. Tucker, 335 S.W.3d at 123. Here, the petitioner attached to his original petition for writ of habeas corpus the judgment filed on September 11, 2006, imposing a sentence of four years to be served as 11 months and 29 days’ incarceration followed by community corrections and awarding the petitioner jail credit from January 3, 2006, to September 11, 2006, a period of 251 days. The petitioner also attached a community corrections violation warrant issued on December 4, 2009. Through this documentation, the petitioner established that at the time of the filing of the first violation warrant, he had served 1,179 days on community corrections. The filing of the December 4, 2009 violation warrant tolled the running of the petitioner‘s community corrections sentence. See State v. Shaffer, 45 S.W.3d 553, 555 (Tenn.2001). Thus, when his community corrections sentence was revoked on January 25, 2010, the petitioner was entitled to 251 days’ pretrial jail credit and 1,179 days’ community corrections credit, for a total of 1,430 days’ credit. Because a four-year sentence equates to 1,460 days, only 30 days remained on the originally imposed four-year sentence at the time of the revocation.
Although the trial court clearly retained jurisdiction to revoke the community corrections sentence and order the petitioner to serve the remainder of his sentence incarcerated, the court did not have the power to deny the petitioner credit for time served on community corrections.4 Although the form order utilized by the trial court noted that the petitioner was “[t]o receive credit for time served,” the order does not specifically state that the petitioner is entitled to credit for time spent on community corrections, nor does it specify the total amount of time to be credited against the petitioner‘s pending incarcerative sentence. Given that the order is styled “Probation Revocation Order,” that the order makes no mention of community corrections credits, and that, after revocation, the petitioner remained incarcerated far longer than the 30 days that remained on his sentence, the record establishes that the trial court failed to award the petitioner community corrections credits that he was due and that the petitioner is entitled to habeas corpus relief. In consequence, we remand the case to the habeas corpus court for the entry of an order directing the trial court to amend the petitioner‘s judgment form to reflect that the petitioner was entitled to 251 days’ pretrial jail credit and 1,179 days’ community corrections credit at the time his community corrections sentence was revoked.
Finally, we must consider the petitioner‘s claim that his sentence has expired. By the time the petitioner filed his petition for writ of habeas corpus on June 8, 2010, the petitioner had served 134 days’ incarceration in the Department of Correction, for a total of 1,564 days served on a four-year, or 1,460-day, sentence.5 The
Accordingly, the judgment of the habeas corpus court is reversed, and the case is remanded for the entry of an order directing the trial court to file an amended judgment reflecting appropriate application of earned community corrections credits. Additionally, the petitioner is entitled to immediate release.
JAMES CURWOOD WITT, JR.
JUDGE